Since 1977, Jon Michael Probstein has assisted people and businesses in all matters, is currently special counsel to firms in LA and NYC, and operates his own office in Nassau County. In accordance with the Rules of Professional Conduct, this may be deemed "Attorney Advertising". Nothing contained herein should be construed as legal advice. Always consult a lawyer regarding any matter. Call 888 795-4555 or 212 972-3250 or 516 690-9780. Fax 212 202-6495. Email jmp@jmpattorney.com

REFUSAL TO ABANDON TRIP ABROAD, AFTER GRANTED LEAVE HAD BEEN CANCELLED

No disqualification for a voluntary leaving of employment applies to a claimant whose employment is terminated upon refusal to cancel a vacation trip abroad when a leave for this purpose had been granted and when in reliance thereon, he had incurred expenditures and would have suffered a substantial financial loss by the cancellation of the trip.

Referee's Decision: The initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive calendar days, effective May 19, 1958, on the ground that she voluntarily left her employment without good cause is sustained.

Appealed By: Claimant.

Findings of Fact: Claimant was employed as a file supervisor. Her sister planned and arranged to make a trip abroad. She booked passage on airplanes which were to leave April 21, 1958 and return May 18, 1958 respectively. Due to the sudden illness of her sister, claimant was offered the opportunity to make the trip in her stead. Claimant applied to her supervisor for a leave of absence in order to make the trip. Such leave was granted upon condition that she relinquishes her summer vacation. This was agreeable to claimant.

Relying upon the granting of her leave of absence, claimant made the necessary preparations. She incurred substantial expenses, obtained a passport and submitted to vaccinations. Four days prior to the scheduled trip, claimant was informed that her leave of absence was cancelled because it was granted through error on the part of her supervisor. Claimant was then informed that if she made the trip it would be at the risk of her job. Claimant deemed it too late to rescind the trip arrangements and had no alternative but to submit the requested resignation. Had claimant cancelled her reservation, a substantial loss would have been suffered.

Claimant refiled for benefits effective May 19, 1958. The local office issued an initial determination disqualifying her from receiving benefits for 42 consecutive calendar days effective May 19, 1958, on the ground that she voluntarily left her employment without good cause.

Appeal Board Opinion and Decision: The referee, in sustaining the initial determination concluded that claimant left her employment without good cause because it was based upon personal considerations. We do not agree with this conclusion.

The trip in question involved the expenditure of a considerable sum of money. Claimant arranged to make the trip only after she had been granted a leave of absence. Claimant, in reliance thereon, proceeded to make the necessary preparations. Her demanded resignation, which followed her refusal to abandon the trip, was submitted by claimant not of her own free choice, but at the request of her supervisor.

We hold that under all the circumstances herein, claimant did not voluntarily leave her job. Virtually, she was discharged. She did not provoke her discharge.

The initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive calendar days effective May 19, 1958, on the ground that she voluntarily left her employment is overruled. The decision of the referee is reversed. (August 22, 1958)

COMMENTS

In a previous case dealing with a claimant who left his employment to make a trip abroad (A-750-1358), the Appeal Board held that the voluntary leaving was without good cause. There are several factors which distinguish that case from the one here reported. In the earlier case, the employer did not grant a leave of absence and the claimant was made aware that he assumed the risk of being re-hired upon his return. Also, and perhaps more important, there was no evidence that claimant would have sustained a substantial money loss.

In the present case the claimant relied upon the fact that a leave of absence had been granted and had made all necessary preparations at a considerable expenditure. The decision emphasizes that a substantial financial loss would result from the cancellation of the reservations."

5. Upon return from vacation, claimant learns he has either (a) been fired or (b) that employer's position is that by taking vacation, claimant quit employment.

The general rule, according to the Appeal Board, is as follows:

"No disqualification for voluntary leaving employment applies to a claimant whose employment is terminated upon refusal to cancel a vacation trip abroad when a leave for this purpose had been granted and when in reliance thereon, he had incurred expenditures and would have suffered a substantial financial loss by the cancellation of the trip. (A.B. 65,606-580)"

Wednesday, December 28, 2011

The Appeal Board web site cites the following Appeal Board case in support of the general rule that a denial of a request to change vacation plans was not good cause for voluntary leaving of employment:

"Index 1730-1

NEW YORK STATE DEPARTMENT OF LABORUNEMPLOYMENT INSURANCE DIVISIONADJUDICATION SERVICES OFFICE

Findings of Fact: Claimant worked for twelve and a half years as secretary to the president of a corporation. It was a rule of the employer's establishment to schedule vacations of employees in the early part of the calendar year. Claimant's vacation was scheduled for July 1941 at her request. Claimant was ill in April but had recovered in May, although still in a run-down condition. She requested her employer to advance her vacation to May and also for permission to take off two additional weeks. These requests were denied, whereupon claimant resigned on May 9, 1941. Claimant filed for benefits on June 20, 1941. Her benefit rights were suspended by the local office for voluntarily leaving employment without good cause. At the hearing before the referee claimant admitted that the reason for requesting a change in vacation was not because of illness, but because she had the opportunity of taking an automobile trip if she could change her vacation period.

Appeal Board Opinion: Claimant did not advance her illness as a reason when she requested a change in her vacation plans. It appears from claimant's own testimony that her alleged illness did not prompt such a request but rather the fact that she had an opportunity to take an automobile trip at that time. When this request was denied, claimant preferred to resign than change her vacation plans. We cannot escape the conclusion that the real reason for claimant's leaving was the denial of her request for change of vacation. Under the circumstances of this case, we do not deem this to be good cause for her voluntary leaving.

Decision: Local office properly suspended claimant's benefit rights for voluntary leaving without good cause. Decision of referee is reversed. (10/27/41)"

Claimant’s precipitous action in announcing that he would take the next two days off for vacation, and then doing so in defiance of supervisor’s denial of permission, is misconduct.

Referee Decision: The initial determination of the local office disqualifying the claimant from receiving benefits effective April 9, 1974, because he voluntarily left his employment without good cause by provoking his discharge, is overruled.

Appealed By: Employer

Findings of Fact: The claimant, a graphics, photo and paste-up man, worked for a newspaper for eight months until April 8, 1974. He was employed on a part-time basis, Monday through Wednesday, 9 A.M. to 6:30 P.M. Late in the afternoon on Monday April 8, he told his immediate supervisor that he would be absent for the remainder of the week, as he was going to Ft. Lauderdale, Florida for the Easter vacation. The supervisor remonstrated with claimant and advised claimant that he could not be spared, but claimant insisted on going. When claimant returned from Florida and reported back to work on Monday, April 15, his supervisor told him that he had been discharged.

Claimant’s job duties entailed the operation of sensitive photograph equipment requiring special training and experience. The skills that he possessed were needed particularly on the two days of each week, Tuesday and Wednesday, before the employer’s publication went to press. A replacement for the claimant, who would be satisfactory to the employer, would be difficult to obtain on short notice.

Opinion: The credible evidence establishes that late in the afternoon of Monday, April 8 the claimant told his immediate supervisor that he would not be in to work again until the following Monday, April 15, because he was going to Florida for the Easter vacation. The supervisor denied claimant permission to make the trip. On April 9 the claimant left for Florida. As a result of his precipitous action and the position in which he placed the employer thereby, claimant was discharged for what is deemed to be misconduct in connection with his employment.

Decision: The initial determination of the local office is modified to be on the ground that claimant lost his employment through misconduct in connection therewith and as so modified, is sustained.

Friday, December 23, 2011

First, there is the obvious rule regarding vacations and this is from the Appeal Board website:

"Claimant's precipitous action in announcing that he would take the next two days off for vacation, and then doing so in defiance of supervisor's denial of permission, is misconduct. (Matter of Bischoff, 48 A.D. 2d 1010; Affg. A.B. 197,338; A-750-1780)"

Thursday, December 22, 2011

1. Being self employed since around 1982, I have not had a real vacation since.

2. Prior thereto, when I worked at one firm, I did have a vacation and during the vacation, the firm sent me work to do as I was the attorney in charge. Shortly thereafter, I started my own firm.

3. And prior thereto to that incident, I worked at a firm where I was discharged for, among other things, insisting that I take my first vacation after two years (I am still friendly with this firm who advised me at my discharge that they would not dispute my unemployment insurance claim). I was on unemployment insurance for approximately two months until I secured a position at another firm.

I learned that vacations are needed. And I learned that vacations can interfere with business (ask any patient who gets upset when they find out their doctor is out on vacation).

NY Assembly Labor Committee Chair Susan John was quoted in the Wall Street Journal saying, "No other state in the country has a law like this." She was referring to the WBI anti-bullying Healthy Workplace Bill. Thanks to a bill-killing vote in her committee on June 8, that will be true for all of 2010. The vote was not on the merits of the bill. Instead, the vote was technically whether to vote or "hold." It was held and is officially dead.

Read the summary of the news coverage about the Senate passage and Bloomberg's fear of the bill.

Assemblyman Bob Barr introduced A 6207.

2009A2247, the study only bill, passed both the Assembly and Senate but was vetoed Gov. Paterson.

A banner 4-bill year, began with re-introduction of the study-only bills in the Assembly (A 2247) and Senate (S 1948) followed by a second set of companion bills, the complete versions of the HWB in both Assembly (A 5414) and Senate (S 1823). On April 29, 2009, S1823A added a provision to S 1823 to give union workers with collective bargaining agreements the best protection.

2008Barra (R) graciously relinquished control of the bill to Assemblymember Steven Englebright (D) and the bill became A10291 with Barra leading the list of nine co-sponsors. The Senate companion bill [S8793] to the full HWB was added in 2008 by Senators Thomas Morahan and Dale Volker.

2007Assemblymember Bob Barra introduced the first full-text versions of the Healthy Workplace Bill [A7801/A7801-A]. The 2006 study-only bills were repeated [S2715 by Stachowski and A4921 by Schroeder].

2006Senator William Stachowski and Assemblymember Mark Schroeder sponsored the first state bills [S8018 and A11565] calling for the state to study the problem of workplace bullying. Those bills made New York the 9th state to introduce HWB-related legislation in the U.S."

Section 9 Defines Effect on other state laws Other state laws Worker'scompensation and election remedies

JUSTIFICATION: The social and economic well-being of the state isdependent upon healthy and productive employees. Surveys and studieshave documented that between 16 to 21 percent of employees directlyexperience health-endangering workplace bullying, abuse andharassment, and that this behavior is four times more prevalent thansexual harassment alone. Surveys and studies have also documented thatabusive work environments can have serious effects on targetedemployees, including feelings of shame and humiliation, stress, lossof sleep, severe anxiety, depression, post-traumatic stress disorder,reduced immunity to infection, stress related Gastrointestinaldisorders, hypertension, pathophysiologic changes that increase therisk of cardiovascular disease and other such effects.

This legislation will, provide legal redress for employees who havebeen harmed, psychologically, physically, or economically. It willalso provide legal incentives for employers to prevent and respond tomistreatment of employees at work.

Introduced by M. of A. ENGLEBRIGHT -- read once and referred to the Committee on Labor

AN ACT to amend the labor law, in relation to establishing a private cause of action for an abusive work environment

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS:

1 Section 1. The labor law is amended by adding a new article 20-D to 2 read as follows: 3 ARTICLE 20-D 4 ABUSIVE WORK ENVIRONMENT 5 SECTION 760. LEGISLATIVE FINDINGS AND INTENT. 6 761. DEFINITIONS. 7 762. ABUSIVE WORK ENVIRONMENT. 8 763. EMPLOYER LIABILITY. 9 764. DEFENSES. 10 765. RETALIATION. 11 766. REMEDIES. 12 767. ENFORCEMENT. 13 768. EFFECT ON COLLECTIVE BARGAINING AGREEMENTS. 14 769. EFFECT OF OTHER LAWS. 15 S 760. LEGISLATIVE FINDINGS AND INTENT. THE LEGISLATURE HEREBY FINDS 16 THAT THE SOCIAL AND ECONOMIC WELL-BEING OF THE STATE IS DEPENDENT UPON 17 HEALTHY AND PRODUCTIVE EMPLOYEES. SURVEYS AND STUDIES HAVE DOCUMENTED 18 THAT BETWEEN SIXTEEN AND TWENTY-ONE PERCENT OF EMPLOYEES DIRECTLY EXPE- 19 RIENCE HEALTH ENDANGERING WORKPLACE BULLYING, ABUSE AND HARASSMENT. 20 SUCH BEHAVIOR IS FOUR TIMES MORE PREVALENT THAN SEXUAL HARASSMENT. THESE 21 SURVEYS AND STUDIES HAVE FURTHER FOUND THAT ABUSIVE WORK ENVIRONMENTS 22 CAN HAVE SERIOUS EFFECTS ON THE TARGETED EMPLOYEES, INCLUDING FEELINGS 23 OF SHAME AND HUMILIATION, STRESS, LOSS OF SLEEP, SEVERE ANXIETY, 24 DEPRESSION, POST-TRAUMATIC STRESS DISORDER, REDUCED IMMUNITY TO 25 INFECTION, STRESS-RELATED GASTROINTESTINAL DISORDERS, HYPERTENSION, AND

EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD08789-01-1 A. 4258 2

1 PATHOPHYSIOLOGIC CHANGES THAT INCREASE THE RISK OF CARDIOVASCULAR 2 DISEASES. 3 FURTHERMORE, THE LEGISLATURE FINDS THAT ABUSIVE WORK ENVIRONMENTS CAN 4 HAVE SERIOUS CONSEQUENCES FOR EMPLOYERS, INCLUDING REDUCED EMPLOYEE 5 PRODUCTIVITY AND MORALE, HIGHER TURNOVER AND ABSENTEEISM RATES, AND 6 SIGNIFICANT INCREASES IN MEDICAL AND WORKERS' COMPENSATION CLAIMS. 7 THE LEGISLATURE HEREBY FINDS THAT UNLESS MISTREATED EMPLOYEES HAVE 8 BEEN SUBJECTED TO ABUSIVE TREATMENT IN THE WORKPLACE ON THE BASIS OF 9 RACE, COLOR, SEX, NATIONAL ORIGIN OR AGE, SUCH EMPLOYEES ARE UNLIKELY TO 10 HAVE LEGAL RECOURSE TO REDRESS SUCH TREATMENT. 11 THE LEGISLATURE HEREBY DECLARES THAT LEGAL PROTECTION FROM ABUSIVE 12 WORK ENVIRONMENTS SHOULD NOT BE LIMITED TO BEHAVIOR GROUNDED IN A 13 PROTECTED CLASS STATUS AS REQUIRED BY EMPLOYMENT DISCRIMINATION STAT- 14 UTES. EXISTING WORKERS' COMPENSATION PROVISIONS AND COMMON LAW TORT LAW 15 ARE INADEQUATE TO DISCOURAGE SUCH ABUSIVE CONDUCT AND PROVIDE ADEQUATE 16 REDRESS TO EMPLOYEES WHO HAVE BEEN HARMED BY ABUSIVE WORK ENVIRONMENTS. 17 THE PURPOSE OF THIS ARTICLE SHALL BE TO PROVIDE LEGAL REDRESS FOR 18 EMPLOYEES WHO HAVE BEEN HARMED PSYCHOLOGICALLY, PHYSICALLY OR ECONOM- 19 ICALLY BY BEING DELIBERATELY SUBJECTED TO ABUSIVE WORK ENVIRONMENTS; AND 20 TO PROVIDE LEGAL INCENTIVES FOR EMPLOYERS TO PREVENT AND RESPOND TO 21 MISTREATMENT OF EMPLOYEES AT WORK. 22 S 761. DEFINITIONS. AS USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL 23 HAVE THE FOLLOWING MEANINGS: 24 1. "ABUSIVE CONDUCT" MEANS CONDUCT, WITH MALICE, TAKEN AGAINST AN 25 EMPLOYEE BY AN EMPLOYER OR ANOTHER EMPLOYEE IN THE WORKPLACE, THAT A 26 REASONABLE PERSON WOULD FIND TO BE HOSTILE, OFFENSIVE AND UNRELATED TO 27 THE EMPLOYER'S LEGITIMATE BUSINESS INTERESTS. IN CONSIDERING WHETHER 28 SUCH CONDUCT IS OCCURRING, THE TRIER OF FACT SHOULD WEIGH THE SEVERITY, 29 NATURE AND FREQUENCY OF THE CONDUCT. ABUSIVE CONDUCT SHALL INCLUDE, BUT 30 NOT BE LIMITED TO, REPEATED INFLICTION OF VERBAL ABUSE, SUCH AS THE USE 31 OF DEROGATORY REMARKS, INSULTS AND EPITHETS; VERBAL OR PHYSICAL CONDUCT 32 THAT A REASONABLE PERSON WOULD FIND THREATENING, INTIMIDATING OR HUMILI- 33 ATING; OR THE GRATUITOUS SABOTAGE OR UNDERMINING OF AN EMPLOYEE'S WORK 34 PERFORMANCE. A SINGLE ACT SHALL NOT CONSTITUTE ABUSIVE CONDUCT, UNLESS 35 THE TRIER OF FACT FINDS SUCH ACT TO BE ESPECIALLY SEVERE OR EGREGIOUS. 36 2. "ABUSIVE WORK ENVIRONMENT" MEANS A WORKPLACE IN WHICH AN EMPLOYEE 37 IS SUBJECTED TO ABUSIVE CONDUCT THAT IS SO SEVERE THAT IT CAUSES PHYS- 38 ICAL OR PSYCHOLOGICAL HARM TO SUCH EMPLOYEE, AND WHERE SUCH EMPLOYEE 39 PROVIDES NOTICE TO THE EMPLOYER THAT SUCH EMPLOYEE HAS BEEN SUBJECTED TO 40 ABUSIVE CONDUCT AND SUCH EMPLOYER AFTER RECEIVING NOTICE THEREOF, FAILS 41 TO ELIMINATE THE ABUSIVE CONDUCT. 42 3. "CONDUCT" MEANS ALL FORMS OF BEHAVIOR, INCLUDING ACTS AND OMISSIONS 43 TO ACT. 44 4. "CONSTRUCTIVE DISCHARGE" MEANS ABUSIVE CONDUCT AGAINST AN EMPLOYEE 45 THAT CAUSES SUCH EMPLOYEE TO RESIGN FROM HIS OR HER EMPLOYMENT. 46 5. "MALICE" MEANS THE INTENT TO CAUSE ANOTHER PERSON TO SUFFER PSYCHO- 47 LOGICAL, PHYSICAL OR ECONOMIC HARM, WITHOUT LEGITIMATE CAUSE OR JUSTI- 48 FICATION. MALICE MAY BE INFERRED FROM THE PRESENCE OF FACTORS SUCH AS 49 OUTWARD EXPRESSIONS OF HOSTILITY, HARMFUL CONDUCT INCONSISTENT WITH AN 50 EMPLOYER'S LEGITIMATE BUSINESS INTERESTS, A CONTINUATION OF HARMFUL AND 51 ILLEGITIMATE CONDUCT AFTER A COMPLAINANT REQUESTS THAT IT CEASE OR 52 DISPLAYS OUTWARD SIGNS OF EMOTIONAL OR PHYSICAL DISTRESS IN THE FACE OF 53 THE CONDUCT, OR ATTEMPTS TO EXPLOIT THE COMPLAINANT'S KNOWN PSYCHOLOG- 54 ICAL OR PHYSICAL VULNERABILITY. A. 4258 3

1 6. "NEGATIVE EMPLOYMENT DECISION" MEANS A TERMINATION, CONSTRUCTIVE 2 DISCHARGE, DEMOTION, UNFAVORABLE REASSIGNMENT, REFUSAL TO PROMOTE OR 3 DISCIPLINARY ACTION. 4 7. "PHYSICAL HARM" MEANS THE MATERIAL IMPAIRMENT OF A PERSON'S PHYS- 5 ICAL HEALTH OR BODILY INTEGRITY, AS DOCUMENTED BY A COMPETENT PHYSICIAN 6 OR SUPPORTED BY COMPETENT EXPERT EVIDENCE AT TRIAL. 7 8. "PSYCHOLOGICAL HARM" MEANS THE MATERIAL IMPAIRMENT OF A PERSON'S 8 MENTAL HEALTH, AS DOCUMENTED BY A COMPETENT PHYSICIAN OR SUPPORTED BY 9 COMPETENT EXPERT EVIDENCE AT TRIAL. 10 S 762. ABUSIVE WORK ENVIRONMENT. IT SHALL BE UNLAWFUL TO SUBJECT AN 11 EMPLOYEE TO AN ABUSIVE WORK ENVIRONMENT. 12 S 763. EMPLOYER LIABILITY. AN EMPLOYER SHALL BE CIVILLY LIABLE FOR THE 13 EXISTENCE OF AN ABUSIVE WORK ENVIRONMENT WITHIN ANY WORKPLACE UNDER ITS 14 CONTROL. 15 S 764. DEFENSES. 1. IT SHALL BE AN AFFIRMATIVE DEFENSE TO A CAUSE OF 16 ACTION FOR ABUSIVE WORK ENVIRONMENT, THAT THE EMPLOYER EXERCISED REASON- 17 ABLE CARE TO PREVENT AND PROMPTLY CORRECT THE ABUSIVE CONDUCT WHICH IS 18 THE BASIS OF SUCH CAUSE OF ACTION AND THE PLAINTIFF UNREASONABLY FAILED 19 TO TAKE ADVANTAGE OF THE APPROPRIATE PREVENTIVE OR CORRECTIVE OPPORTU- 20 NITIES PROVIDED BY SUCH EMPLOYER. SUCH AFFIRMATIVE DEFENSE SHALL NOT BE 21 AVAILABLE TO AN EMPLOYER WHEN THE ABUSIVE CONDUCT CULMINATES IN A NEGA- 22 TIVE EMPLOYMENT DECISION WITH REGARD TO THE PLAINTIFF. 23 2. IT SHALL BE AN AFFIRMATIVE DEFENSE TO A CAUSE OF ACTION FOR ABUSIVE 24 WORK ENVIRONMENT, THAT THE EMPLOYER MADE A NEGATIVE EMPLOYMENT DECISION 25 WITH REGARD TO THE PLAINTIFF WHICH IS CONSISTENT WITH SUCH EMPLOYER'S 26 LEGITIMATE BUSINESS INTERESTS, SUCH AS TERMINATION OR DEMOTION BASED ON 27 THE PLAINTIFF'S POOR PERFORMANCE OR THE COMPLAINT IS BASED PRIMARILY 28 UPON THE EMPLOYER'S REASONABLE INVESTIGATION OF POTENTIALLY DANGEROUS, 29 ILLEGAL OR UNETHICAL ACTIVITY. 30 S 765. RETALIATION. ANY RETALIATORY ACTION AGAINST ANY EMPLOYEE ALLEG- 31 ING A VIOLATION OF THIS ARTICLE SHALL BE DEEMED TO BE A RETALIATORY 32 PERSONNEL ACTION AS PROHIBITED BY SECTION SEVEN HUNDRED FORTY OF THIS 33 CHAPTER. 34 S 766. REMEDIES. 1. WHERE A DEFENDANT HAS BEEN FOUND TO HAVE ENGAGED 35 IN ABUSIVE CONDUCT, OR CAUSED OR MAINTAINED AN ABUSIVE WORK ENVIRONMENT, 36 THE COURT MAY ENJOIN SUCH DEFENDANT FROM ENGAGING IN SUCH ILLEGAL ACTIV- 37 ITY AND MAY ORDER ANY OTHER RELIEF THAT IS APPROPRIATE INCLUDING, BUT 38 NOT LIMITED TO, REINSTATEMENT, REMOVAL OF THE OFFENDING PARTY FROM THE 39 PLAINTIFF'S WORK ENVIRONMENT, REIMBURSEMENT FOR LOST WAGES, MEDICAL 40 EXPENSES, COMPENSATION FOR EMOTIONAL DISTRESS, PUNITIVE DAMAGES AND 41 ATTORNEY FEES. 42 2. WHERE AN EMPLOYER HAS BEEN FOUND TO HAVE CAUSED OR MAINTAINED AN 43 ABUSIVE WORK ENVIRONMENT THAT DID NOT RESULT IN A NEGATIVE EMPLOYMENT 44 DECISION, SUCH EMPLOYER'S LIABILITY FOR DAMAGES FOR EMOTIONAL DISTRESS 45 SHALL NOT EXCEED TWENTY-FIVE THOUSAND DOLLARS AND SHALL HAVE NO LIABIL- 46 ITY FOR PUNITIVE DAMAGES. THE PROVISIONS OF THIS SUBDIVISION SHALL NOT 47 APPLY TO ANY EMPLOYEE WHO ENGAGES IN ABUSIVE CONDUCT. 48 S 767. ENFORCEMENT. 1. THE PROVISIONS OF THIS ARTICLE ARE ENFORCEABLE 49 BY MEANS OF A CIVIL CAUSE OF ACTION COMMENCED BY AN INJURED EMPLOYEE. 50 2. NOTWITHSTANDING THE PROVISIONS OF THE CIVIL PRACTICE LAW AND RULES, 51 AN ACTION TO ENFORCE THE PROVISIONS OF THIS ARTICLE SHALL BE COMMENCED 52 WITHIN ONE YEAR OF THE LAST ABUSIVE CONDUCT WHICH IS THE BASIS OF THE 53 ALLEGATION OF ABUSIVE WORK ENVIRONMENT. 54 S 768. EFFECT ON COLLECTIVE BARGAINING AGREEMENTS. THIS ARTICLE SHALL 55 NOT PREVENT, INTERFERE, EXEMPT OR SUPERSEDE ANY CURRENT PROVISIONS OF AN 56 EMPLOYEE'S EXISTING COLLECTIVE BARGAINING AGREEMENT WHICH PROVIDES A. 4258 4

1 GREATER RIGHTS AND PROTECTIONS THAN PRESCRIBED IN THIS ARTICLE NOR SHALL 2 THIS ARTICLE PREVENT ANY NEW PROVISIONS OF THE COLLECTIVE BARGAINING 3 AGREEMENT WHICH PROVIDE GREATER RIGHTS AND PROTECTIONS FROM BEING IMPLE- 4 MENTED AND APPLICABLE TO SUCH EMPLOYEE WITHIN SUCH COLLECTIVE BARGAINING 5 AGREEMENT. WHERE THE COLLECTIVE BARGAINING AGREEMENT PROVIDES GREATER 6 RIGHTS AND PROTECTIONS THAN PRESCRIBED IN THIS ARTICLE, THE RECOGNIZED 7 COLLECTIVE BARGAINING AGENT MAY OPT TO ACCEPT OR REJECT TO BE COVERED BY 8 THE PROVISIONS OF THIS ARTICLE. 9 S 769. EFFECT OF OTHER LAWS. 1. NO PROVISION OF THIS ARTICLE SHALL BE 10 DEEMED TO EXEMPT ANY PERSON OR ENTITY FROM ANY LIABILITY, DUTY OR PENAL- 11 TY PROVIDED BY ANY OTHER STATE LAW, RULE OR REGULATION. 12 2. THE REMEDIES OF THIS ARTICLE SHALL BE GRANTED IN ADDITION TO ANY 13 COMPENSATION AVAILABLE PURSUANT TO THE WORKERS' COMPENSATION LAW; 14 PROVIDED, HOWEVER, THAT NO PERSON WHO HAS COLLECTED WORKERS' COMPEN- 15 SATION BENEFITS FOR CONDITIONS ARISING OUT OF AN ABUSIVE WORK ENVIRON- 16 MENT, SHALL BE AUTHORIZED TO COMMENCE A CAUSE OF ACTION PURSUANT TO THIS 17 ARTICLE FOR THE SAME SUCH CONDITIONS. 18 S 2. This act shall take effect immediately, and shall apply to 19 abusive conduct occurring on or after such date."

Section 9 Defines Effect on Other State Laws Other State Laws Worker'sCompensation and Election Remedies

JUSTIFICATION:The social and economic well-being of the state is dependent uponhealthy and productive employees. Surveys and studies have documentedthat between 16 to 21 percent of employees directly experiencehealth-endangering workplace bullying, abuse and harassment, and thatthis behavior is four times more prevalent than sexual harassmentalone. Surveys and studies have also documented that abusive workenvironments can have serious effects on targeted employees,including feelings of shame and humiliation, stress, loss of sleep,severe anxiety, depression, posttraumatic stress disorder, reducedimmunity to infection, stress related gastrointestinal disorders,hypertension, pathophysiologic changes that increase the risk ofcardiovascular disease and other such effects.

This legislation will provide legal redress for employees who havebeen harmed, psychologically, physically, or economically. It willalso provide legal incentives for employers to prevent and respond tomistreatment of employees at work.

S4289-2011 Text S T A T E O F N E W Y O R K 4289 2011-2012 Regular Sessions I N SENATE March 28, 2011 Introduced by Sen. SAVINO -- read twice and ordered printed, and when printed to be committed to the Committee on Labor AN ACT to amend the labor law, in relation to establishing a private cause of action for an abusive work environment THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM BLY, DO ENACT AS FOLLOWS: Section 1. The labor law is amended by adding a new article 20-D to read as follows: ARTICLE 20-D ABUSIVE WORK ENVIRONMENT SECTION 760. LEGISLATIVE FINDINGS AND INTENT. 761. DEFINITIONS. 762. ABUSIVE WORK ENVIRONMENT. 763. EMPLOYER LIABILITY. 764. DEFENSES. 765. RETALIATION. 766. REMEDIES. 767. ENFORCEMENT. 768. EFFECT ON COLLECTIVE BARGAINING AGREEMENTS. 769. EFFECT OF OTHER LAWS. S 760. LEGISLATIVE FINDINGS AND INTENT. THE LEGISLATURE HEREBY FINDS THAT THE SOCIAL AND ECONOMIC WELL-BEING OF THE STATE IS DEPENDENT UPON HEALTHY AND PRODUCTIVE EMPLOYEES. SURVEYS AND STUDIES HAVE DOCUMENTED THAT BETWEEN SIXTEEN AND TWENTY-ONE PERCENT OF EMPLOYEES DIRECTLY EXPE RIENCE HEALTH ENDANGERING WORKPLACE BULLYING, ABUSE AND HARASSMENT. SUCH BEHAVIOR IS FOUR TIMES MORE PREVALENT THAN SEXUAL HARASSMENT. THESE SURVEYS AND STUDIES HAVE FURTHER FOUND THAT ABUSIVE WORK ENVIRONMENTS CAN HAVE SERIOUS EFFECTS ON THE TARGETED EMPLOYEES, INCLUDING FEELINGS OF SHAME AND HUMILIATION, STRESS, LOSS OF SLEEP, SEVERE ANXIETY, DEPRESSION, POST-TRAUMATIC STRESS DISORDER, REDUCED IMMUNITY TO INFECTION, STRESS-RELATED GASTROINTESTINAL DISORDERS, HYPERTENSION, AND EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD08789-01-1 S. 4289 2 PATHOPHYSIOLOGIC CHANGES THAT INCREASE THE RISK OF CARDIOVASCULAR DISEASES. FURTHERMORE, THE LEGISLATURE FINDS THAT ABUSIVE WORK ENVIRONMENTS CAN HAVE SERIOUS CONSEQUENCES FOR EMPLOYERS, INCLUDING REDUCED EMPLOYEE PRODUCTIVITY AND MORALE, HIGHER TURNOVER AND ABSENTEEISM RATES, AND SIGNIFICANT INCREASES IN MEDICAL AND WORKERS' COMPENSATION CLAIMS. THE LEGISLATURE HEREBY FINDS THAT UNLESS MISTREATED EMPLOYEES HAVE BEEN SUBJECTED TO ABUSIVE TREATMENT IN THE WORKPLACE ON THE BASIS OF RACE, COLOR, SEX, NATIONAL ORIGIN OR AGE, SUCH EMPLOYEES ARE UNLIKELY TO HAVE LEGAL RECOURSE TO REDRESS SUCH TREATMENT. THE LEGISLATURE HEREBY DECLARES THAT LEGAL PROTECTION FROM ABUSIVE WORK ENVIRONMENTS SHOULD NOT BE LIMITED TO BEHAVIOR GROUNDED IN A PROTECTED CLASS STATUS AS REQUIRED BY EMPLOYMENT DISCRIMINATION STAT UTES. EXISTING WORKERS' COMPENSATION PROVISIONS AND COMMON LAW TORT LAW ARE INADEQUATE TO DISCOURAGE SUCH ABUSIVE CONDUCT AND PROVIDE ADEQUATE REDRESS TO EMPLOYEES WHO HAVE BEEN HARMED BY ABUSIVE WORK ENVIRONMENTS. THE PURPOSE OF THIS ARTICLE SHALL BE TO PROVIDE LEGAL REDRESS FOR EMPLOYEES WHO HAVE BEEN HARMED PSYCHOLOGICALLY, PHYSICALLY OR ECONOM ICALLY BY BEING DELIBERATELY SUBJECTED TO ABUSIVE WORK ENVIRONMENTS; AND TO PROVIDE LEGAL INCENTIVES FOR EMPLOYERS TO PREVENT AND RESPOND TO MISTREATMENT OF EMPLOYEES AT WORK. S 761. DEFINITIONS. AS USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS: 1. "ABUSIVE CONDUCT" MEANS CONDUCT, WITH MALICE, TAKEN AGAINST AN EMPLOYEE BY AN EMPLOYER OR ANOTHER EMPLOYEE IN THE WORKPLACE, THAT A REASONABLE PERSON WOULD FIND TO BE HOSTILE, OFFENSIVE AND UNRELATED TO THE EMPLOYER'S LEGITIMATE BUSINESS INTERESTS. IN CONSIDERING WHETHER SUCH CONDUCT IS OCCURRING, THE TRIER OF FACT SHOULD WEIGH THE SEVERITY, NATURE AND FREQUENCY OF THE CONDUCT. ABUSIVE CONDUCT SHALL INCLUDE, BUT NOT BE LIMITED TO, REPEATED INFLICTION OF VERBAL ABUSE, SUCH AS THE USE OF DEROGATORY REMARKS, INSULTS AND EPITHETS; VERBAL OR PHYSICAL CONDUCT THAT A REASONABLE PERSON WOULD FIND THREATENING, INTIMIDATING OR HUMILI ATING; OR THE GRATUITOUS SABOTAGE OR UNDERMINING OF AN EMPLOYEE'S WORK PERFORMANCE. A SINGLE ACT SHALL NOT CONSTITUTE ABUSIVE CONDUCT, UNLESS THE TRIER OF FACT FINDS SUCH ACT TO BE ESPECIALLY SEVERE OR EGREGIOUS. 2. "ABUSIVE WORK ENVIRONMENT" MEANS A WORKPLACE IN WHICH AN EMPLOYEE IS SUBJECTED TO ABUSIVE CONDUCT THAT IS SO SEVERE THAT IT CAUSES PHYS ICAL OR PSYCHOLOGICAL HARM TO SUCH EMPLOYEE, AND WHERE SUCH EMPLOYEE PROVIDES NOTICE TO THE EMPLOYER THAT SUCH EMPLOYEE HAS BEEN SUBJECTED TO ABUSIVE CONDUCT AND SUCH EMPLOYER AFTER RECEIVING NOTICE THEREOF, FAILS TO ELIMINATE THE ABUSIVE CONDUCT. 3. "CONDUCT" MEANS ALL FORMS OF BEHAVIOR, INCLUDING ACTS AND OMISSIONS TO ACT. 4. "CONSTRUCTIVE DISCHARGE" MEANS ABUSIVE CONDUCT AGAINST AN EMPLOYEE THAT CAUSES SUCH EMPLOYEE TO RESIGN FROM HIS OR HER EMPLOYMENT. 5. "MALICE" MEANS THE INTENT TO CAUSE ANOTHER PERSON TO SUFFER PSYCHO LOGICAL, PHYSICAL OR ECONOMIC HARM, WITHOUT LEGITIMATE CAUSE OR JUSTI FICATION. MALICE MAY BE INFERRED FROM THE PRESENCE OF FACTORS SUCH AS OUTWARD EXPRESSIONS OF HOSTILITY, HARMFUL CONDUCT INCONSISTENT WITH AN EMPLOYER'S LEGITIMATE BUSINESS INTERESTS, A CONTINUATION OF HARMFUL AND ILLEGITIMATE CONDUCT AFTER A COMPLAINANT REQUESTS THAT IT CEASE OR DISPLAYS OUTWARD SIGNS OF EMOTIONAL OR PHYSICAL DISTRESS IN THE FACE OF THE CONDUCT, OR ATTEMPTS TO EXPLOIT THE COMPLAINANT'S KNOWN PSYCHOLOG ICAL OR PHYSICAL VULNERABILITY. S. 4289 3 6. "NEGATIVE EMPLOYMENT DECISION" MEANS A TERMINATION, CONSTRUCTIVE DISCHARGE, DEMOTION, UNFAVORABLE REASSIGNMENT, REFUSAL TO PROMOTE OR DISCIPLINARY ACTION. 7. "PHYSICAL HARM" MEANS THE MATERIAL IMPAIRMENT OF A PERSON'S PHYS ICAL HEALTH OR BODILY INTEGRITY, AS DOCUMENTED BY A COMPETENT PHYSICIAN OR SUPPORTED BY COMPETENT EXPERT EVIDENCE AT TRIAL. 8. "PSYCHOLOGICAL HARM" MEANS THE MATERIAL IMPAIRMENT OF A PERSON'S MENTAL HEALTH, AS DOCUMENTED BY A COMPETENT PHYSICIAN OR SUPPORTED BY COMPETENT EXPERT EVIDENCE AT TRIAL. S 762. ABUSIVE WORK ENVIRONMENT. IT SHALL BE UNLAWFUL TO SUBJECT AN EMPLOYEE TO AN ABUSIVE WORK ENVIRONMENT. S 763. EMPLOYER LIABILITY. AN EMPLOYER SHALL BE CIVILLY LIABLE FOR THE EXISTENCE OF AN ABUSIVE WORK ENVIRONMENT WITHIN ANY WORKPLACE UNDER ITS CONTROL. S 764. DEFENSES. 1. IT SHALL BE AN AFFIRMATIVE DEFENSE TO A CAUSE OF ACTION FOR ABUSIVE WORK ENVIRONMENT, THAT THE EMPLOYER EXERCISED REASON ABLE CARE TO PREVENT AND PROMPTLY CORRECT THE ABUSIVE CONDUCT WHICH IS THE BASIS OF SUCH CAUSE OF ACTION AND THE PLAINTIFF UNREASONABLY FAILED TO TAKE ADVANTAGE OF THE APPROPRIATE PREVENTIVE OR CORRECTIVE OPPORTU NITIES PROVIDED BY SUCH EMPLOYER. SUCH AFFIRMATIVE DEFENSE SHALL NOT BE AVAILABLE TO AN EMPLOYER WHEN THE ABUSIVE CONDUCT CULMINATES IN A NEGA TIVE EMPLOYMENT DECISION WITH REGARD TO THE PLAINTIFF. 2. IT SHALL BE AN AFFIRMATIVE DEFENSE TO A CAUSE OF ACTION FOR ABUSIVE WORK ENVIRONMENT, THAT THE EMPLOYER MADE A NEGATIVE EMPLOYMENT DECISION WITH REGARD TO THE PLAINTIFF WHICH IS CONSISTENT WITH SUCH EMPLOYER'S LEGITIMATE BUSINESS INTERESTS, SUCH AS TERMINATION OR DEMOTION BASED ON THE PLAINTIFF'S POOR PERFORMANCE OR THE COMPLAINT IS BASED PRIMARILY UPON THE EMPLOYER'S REASONABLE INVESTIGATION OF POTENTIALLY DANGEROUS, ILLEGAL OR UNETHICAL ACTIVITY. S 765. RETALIATION. ANY RETALIATORY ACTION AGAINST ANY EMPLOYEE ALLEG ING A VIOLATION OF THIS ARTICLE SHALL BE DEEMED TO BE A RETALIATORY PERSONNEL ACTION AS PROHIBITED BY SECTION SEVEN HUNDRED FORTY OF THIS CHAPTER. S 766. REMEDIES. 1. WHERE A DEFENDANT HAS BEEN FOUND TO HAVE ENGAGED IN ABUSIVE CONDUCT, OR CAUSED OR MAINTAINED AN ABUSIVE WORK ENVIRONMENT, THE COURT MAY ENJOIN SUCH DEFENDANT FROM ENGAGING IN SUCH ILLEGAL ACTIV ITY AND MAY ORDER ANY OTHER RELIEF THAT IS APPROPRIATE INCLUDING, BUT NOT LIMITED TO, REINSTATEMENT, REMOVAL OF THE OFFENDING PARTY FROM THE PLAINTIFF'S WORK ENVIRONMENT, REIMBURSEMENT FOR LOST WAGES, MEDICAL EXPENSES, COMPENSATION FOR EMOTIONAL DISTRESS, PUNITIVE DAMAGES AND ATTORNEY FEES. 2. WHERE AN EMPLOYER HAS BEEN FOUND TO HAVE CAUSED OR MAINTAINED AN ABUSIVE WORK ENVIRONMENT THAT DID NOT RESULT IN A NEGATIVE EMPLOYMENT DECISION, SUCH EMPLOYER'S LIABILITY FOR DAMAGES FOR EMOTIONAL DISTRESS SHALL NOT EXCEED TWENTY-FIVE THOUSAND DOLLARS AND SHALL HAVE NO LIABIL ITY FOR PUNITIVE DAMAGES. THE PROVISIONS OF THIS SUBDIVISION SHALL NOT APPLY TO ANY EMPLOYEE WHO ENGAGES IN ABUSIVE CONDUCT. S 767. ENFORCEMENT. 1. THE PROVISIONS OF THIS ARTICLE ARE ENFORCEABLE BY MEANS OF A CIVIL CAUSE OF ACTION COMMENCED BY AN INJURED EMPLOYEE. 2. NOTWITHSTANDING THE PROVISIONS OF THE CIVIL PRACTICE LAW AND RULES, AN ACTION TO ENFORCE THE PROVISIONS OF THIS ARTICLE SHALL BE COMMENCED WITHIN ONE YEAR OF THE LAST ABUSIVE CONDUCT WHICH IS THE BASIS OF THE ALLEGATION OF ABUSIVE WORK ENVIRONMENT. S 768. EFFECT ON COLLECTIVE BARGAINING AGREEMENTS. THIS ARTICLE SHALL NOT PREVENT, INTERFERE, EXEMPT OR SUPERSEDE ANY CURRENT PROVISIONS OF AN EMPLOYEE'S EXISTING COLLECTIVE BARGAINING AGREEMENT WHICH PROVIDES S. 4289 4 GREATER RIGHTS AND PROTECTIONS THAN PRESCRIBED IN THIS ARTICLE NOR SHALL THIS ARTICLE PREVENT ANY NEW PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT WHICH PROVIDE GREATER RIGHTS AND PROTECTIONS FROM BEING IMPLE MENTED AND APPLICABLE TO SUCH EMPLOYEE WITHIN SUCH COLLECTIVE BARGAINING AGREEMENT. WHERE THE COLLECTIVE BARGAINING AGREEMENT PROVIDES GREATER RIGHTS AND PROTECTIONS THAN PRESCRIBED IN THIS ARTICLE, THE RECOGNIZED COLLECTIVE BARGAINING AGENT MAY OPT TO ACCEPT OR REJECT TO BE COVERED BY THE PROVISIONS OF THIS ARTICLE. S 769. EFFECT OF OTHER LAWS. 1. NO PROVISION OF THIS ARTICLE SHALL BE DEEMED TO EXEMPT ANY PERSON OR ENTITY FROM ANY LIABILITY, DUTY OR PENAL TY PROVIDED BY ANY OTHER STATE LAW, RULE OR REGULATION. 2. THE REMEDIES OF THIS ARTICLE SHALL BE GRANTED IN ADDITION TO ANY COMPENSATION AVAILABLE PURSUANT TO THE WORKERS' COMPENSATION LAW; PROVIDED, HOWEVER, THAT NO PERSON WHO HAS COLLECTED WORKERS' COMPEN SATION BENEFITS FOR CONDITIONS ARISING OUT OF AN ABUSIVE WORK ENVIRON MENT, SHALL BE AUTHORIZED TO COMMENCE A CAUSE OF ACTION PURSUANT TO THIS ARTICLE FOR THE SAME SUCH CONDITIONS. S 2. This act shall take effect immediately, and shall apply to abusive conduct occurring on or after such date."

"[I]t is axiomatic that in order to establish a . . . hostilework environment . . . a plaintiff must demonstrate that theconduct occurred because of her [membership in a protectedclass]." Alfano v. Costello, 294 F.3d 365, 374 (2dCir. 2002) (internal quotation marks omitted). Many of theincidents Vito claims demonstrate a hostile work environment amount to, at most, workplacebullying completely detached from any discriminatory motive.For example, we can discern no reason why either ShiftSupervisor Rich Goodburlet ("Goodburlet") ringing a bell inVito's presence or co-worker Mehmet Charlayan ("Charlayan")throwing tape at her constitute anything more than "minorannoyances" typical of those "all employees experience."Burlington N. & Santa Fe Ry. Co. v. White,548 U.S. 53, 67, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Similarly,Vito was only incidentally involved in much of the sexualbanter that allegedly took place in the department. Forexample, Vito complains that she witnessed Charlayan "flickinghis tongue up and down in the direction of Deb Rock" ("Rock"),another one of Vito's coworkers, and that "a note was placedon Deb Rock's back indicating that she was `property.'" "

Monday, December 12, 2011

The Healthy Workplace Bill is being proposed because federal and state laws do not cover "workplace bullying" per se. For example, in BORSKI v. STATEN ISLAND RAPID TRANSIT, 413 Fed.Appx. 409 (2nd Cir. 2011):

"In this, case, it would have been futile for the district court to permit Borski to raise his hostile work environment claim because workplace bullying, such as the behavior exhibited by Borski's colleagues in this case, does not constitute discrimination merely because it contains "sexual content or connotations." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). Instead, a plaintiff must demonstrate that the offending conduct occurred because of his membership in a protected class. Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002). While Borski was often the target of ridicule, the record reveals no evidence whatsoever that he was targeted because of his sex. Without such evidence, his discrimination claim would necessarily have failed. See Brown v. Henderson, 257 F.3d 246, 255-56 (2d Cir. 2001). We therefore conclude that the district court properly denied Borski's crossmotion to amend his complaint."

Saturday, December 10, 2011

"At present time, it is currently legal in the United States for an individual (usually a person in a supervisory role) to impair and/or destroy the physical and psychological well being of an employee, their social support network and career using an employer’s resources when a person is not a member of a protected status group. Current State and Federal laws only recognize an unlawful employment practice when a person is a member of a “protected status” group such as race, religious creed, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex age or sexual orientation and the employer or any person acting directly or indirectly as an agent of the employer harasses an employee. Why isn’t workplace bullying covered under current State of Federal law? Because the bully and the target are both members of a protected class, therefore the existing harassment laws are negated and the bully is free to impair the health of another person without ramifications. NYHWA and via the Healthy Workplace Bill seeks to expand current harassment law to make it an unlawful employment practice to subject an employee to an abusive workplace environment regardless of protected status membership or better defined as a “status-blind” harassment protection."

Friday, December 9, 2011

"Workplace bullying, like childhood bullying, is the tendency of individuals or groups to use persistent aggressive or unreasonable behaviour against a co-worker or subordinate. Workplace bullying can include such tactics as verbal, nonverbal, psychological, physical abuse and humiliation. This type of aggression is particularly difficult because, unlike the typical forms of school bullying, workplace bullies often operate within the established rules and policies of their organization and their society. Bullying in the workplace is in the majority of cases reported as having been perpetrated by management and takes a wide variety of forms. Bullying can be covert or overt."

Thursday, December 8, 2011

The last case (Case No. 7) led me into another UI matter where the same allegations were made by the claimant: the DOL upheld the claimant's decision to voluntary separate stating that the employer's constant nagging and/or harassment gave the claimant a compelling good cause to leave. Since this matter is still pending before the ALJ stage, I cannot discuss it but it led me to research the issue of workplace bullying or harassment.

Findings of Fact: Claimant worked for about seven years prior to January 15, 1944 as a switchboard operator, clerk and receptionist for a public utility. She always resided in New Rochelle. Prior to June 1943 claimant was stationed at the main office of the company located at Mt. Vernon. Subsequent to June 1943 claimant was transferred to the employer’s branch office at Pelham. Claimant used her husband’s automobile to travel to her place of employment at Pelham, which was located about four or five miles from her residence. About ten minutes’ time was consumed in traveling to the establishment. At the time of her voluntary separation on January 15, 1944 claimant earned $31.32 a week. Claimant filed an application for benefits on January 18, 1944 and reported to March 14, 1944. When claimant filed her claim she gave as the reasons for her separation "inconvenience and dampness." The employer certified to the local office that claimant "resigned – dissatisfied with working conditions." Claimant was called in for an interview at the local office on February 2, 1944 relative to the reasons for her voluntary leaving. At this conference claimant signed a statement that she left her employment because the dampness and gas odors in the employer’s establishment at Pelham caused her to have constant colds and to be sick during the winter and because of the inconvenience of traveling to the place of employment. She also stated that she had received medical treatment on several occasions from the company’s doctor and her personal physicians for colds and that the doctor in the plant directed her to remain home until she recovered. On February 3, 1944 the local office mailed a letter to the company’s physician requesting information relative to the working conditions in the establishment and whether they adversely affected claimant’s health. The personnel director of the employer, in writing, informed the local office on February 9, 1944 that the working conditions in the plant were not injurious to claimant’s health, that claimant had consulted the company’s physician on only one occasion in November 1943 when claimant was suffering from the grippe and that claimant stayed out of work about five days due to such illness. On February 8, 1944 the local office issued an initial determination holding that claimant voluntarily left her employment without good cause. The employer’s records disclose that claimant absented herself from work due to colds and minor ailments for seventeen days subsequent to her transfer to the Pelham office. It was the policy of the employer to review from time to time the attendance records of employees showing frequent absences with the view of counseling them to improve their punctuality. On January 9, 1944 claimant was called in for a conference by the personnel manager relative to her frequent absences from work. On this occasion claimant was advised to improve her attendance record and was admonished that a continued unsatisfactory record in this respect might result in her release. Claimant resented such treatment from the personnel manager. She considered the latter’s statements as a severe reprimand coupled with an invitation to resign. On January 10, 1944 claimant submitted a letter of resignation to the employer. In this letter claimant set forth as the reasons for her voluntary leaving that the establishment was in a very inconvenient location, that her supervisor denied her request to take a half hour for lunch on Wednesday, that he was discourteous to her when she took time off to attend her grandmother’s funeral, that he discriminated against her and that the dampness in the plant adversely affected her health. Claimant’s primary reason for her voluntary separation can be gleaned from her testimony as follows:

"Q. So you say that summing the whole thing up, you left because Mr. M. spoke to you and complained about your frequent absences and told you if you didn’t improve you would be forced to resign, and you felt the absences were not you fault, and you had no control over it and felt that was an invitation to quit. Is that what you say?

A. That’s right. The different times I had been out, I thought I should resign. I was thinking it over. Then I was determined when Mr. M. spoke to me and told me I would more or less be forced to resign.

Q. All these other things were just incidental, but they weren’t compelling reasons?

A. Absolutely not." (S.M. 27)

On January 31, 1944 claimant was referred by the United States Employment Service to a job as switchboard operator and clerk. Claimant reported to the prospective employer but she was not hired because she did not have enough experience. On February 2, 1944 claimant was referred to a job as a typist paying from $20 to $25 a week depending on the skill of the applicant in an accountant’s office in New Rochelle. Claimant refused the referral because she lacked a sufficient amount of experience as a typist. On February 16, 1944 claimant was referred to a job as a switchboard operator paying from $22 to $24 a week at a country club in New Rochelle. Claimant refused to accept this referral because she is too nervous to work at a switchboard. On February 23, 1944 claimant was referred to a job as general clerk paying $100 a month in an establishment at Tuckahoe. Claimant refused to accept this referral because she was unwilling to work outside of New Rochelle and because the climate in Mt. Vernon is damp. She admitted she was seeking employment in Pelham and was awaiting word momentarily relative to an application for a job there. On February 18, 1944 the local office issued an initial determination holding that claimant voluntarily left her employment without good cause and under circumstances indicating a withdrawal from the labor market. On the same date it issued another determination holding that claimant, without good cause, refused to accept a referral to employment on February 16, 1944. On March 6, 1944 the local office issued another determination holding that claimant, without good cause, refused to accept two referrals to employment on February 23, 1944.

Appeal Board Opinion: The referee held that claimant’s voluntary leaving was with good cause because claimant’s testimony that her health was adversely affected by the unfavorable working conditions in the plant is entitled to credence. The referee’s conclusion that this was the primary cause of claimant’s leaving lacks support in the record. Claimant’s testimony is that she resented the statements made by the personnel manager relative to her frequent absences from the plant and that she resigned because she felt that the treatment received from him was unwarranted. Upon her own admission this was the primary cause of her voluntary leaving and the other reasons enumerated by her were merely incidental thereto. Even if we accepted claimant’s primary reason for leaving that the personnel manager’s reprimand was unwarranted, it will not avail this claimant. We dealt with a somewhat similar situation in Appeal Board, 7464-42 in which we said:

"The general principles applicable to the instant facts are very aptly summarized in a paper entitled ‘Issues Involved in Decisions of Disputed Claims for Unemployment Benefits,’ reprinted from the Social Security Year Book, 1940, prepared by the Social Security Board of the Federal Security Agency:

‘ * * * A claimant who leaves because of a reprimand is usually considered not to have good cause for so doing, especially if the reprimand is deserved and reasonable; however, when the reprimand is extreme or unwarranted, good cause is often found. Thus, a New Jersey case (Benefit Series, 3042-N.J.A.) held that a claimant who left because he became discouraged by adverse comments of the employer had good cause for leaving when the criticism was not constructive. On the other hand, in a Rhode Island case (Benefit Series, 1812-R.I.A.) a claimant was found not to have good cause for leaving when, although the employer was hard to get along with and did not use the best language in delivering his frequent reprimands, the claimant’s trouble was due to her own conduct and failure to meet the requirements of the job.’"

The personnel manager’s admonition to claimant to improve her attendance record cannot be regarded either as a reprimand or as an invitation to resign. The personnel manager merely carried out the established policy of the company in dealing with employees who absented themselves frequently from work. The direct cause of claimant’s voluntary leaving was her own arbitrary act and did not constitute good cause within the meaning of the Law.

Decision: Initial determination disqualifying claimant for voluntary leaving of employment without good cause is sustained. The decision of the referee is reversed. (7/31/44)"

Findings of Fact: Claimant worked for an employer engaged in defense work for six months prior to January 16, 1942. Claimant was dissatisfied with the manner in which the employer’s establishment was operated. He contended that the piece-work rates were low, that he lost time being transferred from one machine to another, that he had to be satisfied with $35 a week while other employees earned $75 a week, and that he was not given credit for spoiled work. On January 9, 1942 claimant requested his superior to assign him to a sixteen-hour daily work schedule. This request was denied. On January 16, 1942 claimant was reprimanded for mixing good work with twelve pieces of scrap in order to obtain credit for the spoiled work. After this incident claimant voluntarily left this employment, although he had no prospects for other employment. It was a rule in the establishment that employees would not receive in excess of their basic rate for work which was spoiled through their own carelessness.

Appeal Board Opinion: Claimant voluntarily left his employment because he was dissatisfied generally with the manner in which the employer operated the establishment. The rules in the plant were not unreasonable and applied to all of the employees alike. Furthermore, it does not appear that claimant’s piece-work rate was substantially less favorable than the wages prevailing for similar work in the locality. Claimant’s reasons for leaving his employment do not constitute good cause within the meaning of law.

Decision: The initial determination disqualifying claimant for voluntarily leaving his employment without good cause is sustained. The decision of the referee is affirmed. (12/14/42)"

Monday, December 5, 2011

The Appeal Board Electronic Interpretation Service also lists the following cases regarding "constant nagging" and/or harassment under the heading "1650. Grievances and objections - Action of employer or fellow employee (annoyances)":

"False accusations or constant insinuations made by the employer that claimant is dishonest may constitute good cause for voluntary leaving. (A.B. 13,297-46)

When working conditions become intolerable because of continuous friction with supervisor, good cause may exist for voluntary leaving. (A.B. 12,979-46)

Mere inability to get along with supervisor (clash of personalities) is not good cause for voluntary leaving. (A.B. 13.010-46)"

INTERPRETATION SERVICE – BENEFIT CLAIMSVOLUNTARY LEAVING OF EMPLOYMENTGrievances and ObjectionsAction of EmployerAppeal Board Case Number 39,427-53

VOLUNTARY LEAVING – IMPUGNMENT OF HONESTY AND INTEGRITY BY EMPLOYER

Incompatibility with an employer ordinarily does not constitute good cause for a voluntary quit unless accompanied by factors such as resulting impairment of the claimant’s health or impugnment by the employer of claimant’s honesty and integrity.

Referee’s Decision: The initial determination disqualifying claimant for 42 consecutive days on the ground that she voluntarily left her employment without good cause and the alternative initial determination holding claimant unavailable for employment, effective June 19, 1953 are sustained. (July 28, 1953)

Appealed By: Claimant

Findings of Fact: Claimant, a knitting instructress, was thus employed with a retail yarn store in the Bronx for 22 years to May 22, 1953. Her terminal salary was $76 per week. Due to unfavorable business conditions, disagreements arose from time to time between the claimant and the employer’s wife. Such differences were precipitated by remarks of the latter pertaining to the expense incurred by the firm in operating the instruction department of which claimant was supervisor. During the final portion of claimant’s employment, the employer’s wife on several occasions accused claimant of giving instructions in knitting to persons who were not patrons of the store, which claimant considered accusations of dishonesty. Following the last of such accusations she resigned from her position. Claimant filed for benefits effective May 25, 1953 and registered for employment. On June 19, she refused employment in her occupation at $60 to $65 for a six-day week because of the rate and the hours. Claimant was on vacation from June 24 through July 18, 1953. Thereafter, her efforts in search of employment consisted of one or two personal contacts, resulting in one week of employment commencing September 14, 1953. Claimant left that employment voluntarily and became engaged in self-employment. Based on interviews with the claimant and a report received from her previous employer, the local office issued an initial determination disqualifying claimant from receiving benefits for 42 consecutive days effective May 24, 1953 on the ground that she voluntarily left her employment without good cause. A second initial determination was issued by the local office disqualifying claimant from receiving benefits, effective June 19, 1953, on the ground that, without good cause, she refused employment for which she is reasonably fitted by training and experience. An initial determination was issued, in the alternative, holding claimant ineligible to receive benefits, effective June 19, 1953, on the ground that she was unavailable for employment. Claimant protested and requested a hearing before a referee. The referee overruled the initial determination disqualifying her from receiving benefits, effective June 19, 1953, for refusal of employment. No appeal was taken from that portion of the referee’s decision. The referee sustained the remaining initial determinations. Claimant appealed from the portion of the referee’s decision adverse to her.

Appeal Board Opinion: The referee, in sustaining the initial determination pertaining to claimant’s voluntary leaving of her employment, concluded that the objections which prompted her resignation were personal and not compelling. We do not subscribe to this view. Ordinarily, incompatibility existing between an employee and an employer would not be justification for voluntarily leaving employment, unless it were shown that such differences impaired the employee’s health. In the instant case, although the latter element is lacking, we are persuaded that claimant nevertheless was justified in voluntarily leaving her employment since her honesty and integrity were impugned. Concededly, claimant was on vacation from June 24 through July 18, 1953 and ineligible to receive benefits for that period. After July 18, 1953 her efforts in search of employment were of a mere token nature. Claimant made only limited personal contacts in an effort to gain employment during that period. Her resignation from employment after working only one week, in order to engage in self-employment, is further evidence of her tenuous attachment to the labor market at that time. Upon all the facts and circumstances herein, we are convinced that claimant voluntarily left her employment with good cause but that she was unavailable for employment commencing June 24, 1953, when she went on vacation.

Appeal Board Decision: The initial determination of the local office, disqualifying claimant from receiving benefits for 42 consecutive days, effective May 25, 1953, on the ground that she voluntarily left her employment without good cause, is overruled. The alternative initial determination of the local office, holding claimant ineligible to receive benefits, effective June 19, 1953, on the ground that she was unavailable for employment, is modified by fixing the effective date thereof as June 24, 1953 and, as so modified, is sustained. The decision of the referee is modified accordingly. (December 24, 1953)"

Saturday, December 3, 2011

This case is from 1983 on the issue of "constant nagging" and/or harassment:

NEW YORK STATE DEPARTMENT OF LABORUnemployment Insurance DivisionAdjudication Services OfficeJune 30, 1983

Interpretation Service - Benefit Claims VOLUNTARY LEAVINGGrievances and ObjectionsSUPERVISOR'S USE OF PROFANITY

A supervisor's continuing use of abusive profanity when reprimanding the claimant, despite complaints to the employer, provides good cause for voluntary leaving of employment.

A.B. 337,447

FINDINGS OF FACT: Claimant, a general laborer, was employed by a frozen foods company for approximately eight months until April 24, 1982. During the course of his employment, claimant's supervisor developed a pattern of reprimanding the claimant and using profanities and foul language. The final incident occurred when the claimant did maintenance work on some of the employer's equipment, a job which the supervisor believed to be his own responsibility. In reprimanding the claimant, his supervisor engaged in the same pattern of profanity which he had previously used toward claimant during his employment. On at least two occasions, claimant complained to the employer and requested to be moved to another job. No action was taken by the employer. Claimant subsequently resigned his employment because he was unable to tolerate the supervisor's abusive language.

OPINION: The credible evidence now before the Board establishes that the claimant resigned his employment because he could not tolerate the abusive language directed towards him by his supervisor. The fact that claimant remained in this employment situation despite a developing pattern of abusive profanity, and requested a transfer to another job indicates a valid effort to retain his employment. However, the claimant was not obliged to continue to subject himself to his supervisor's profanity and abuse in order to safeguard his employment. Even if the employer's contentions were true, that claimant's supervisor addresses all of his subordinates in a like manner, this does not operate to deprive claimant of a valid basis for resigning his employment. Accordingly, we conclude that claimant's separation from his employment occurred under non-disqualifying conditions because he did have good cause to resign his employment.

DECISION: The initial determination of the local office is overruled. The decision of the administrative law judge is reversed.

COMMENTS

It is an employer's prerogative to criticize or reprimand an employee, and resentment of a reprimand usually is not good cause to voluntarily leave employment. However, good cause may exist when the reprimand:bears no relation to the claimant's work or to reasonable work rules, but is directed instead at the claimant's personal characteristics or private life; or exceeds the bounds of propriety by casting aspersions upon the claimant's integrity, making insulting personal references, including name calling, or employing profanity when such language is not customarily used by most workers in the industry or workplace; or adversely affects the claimant's health, even if the criticism is otherwise proper, if there is medical substantiation that the claimant's physical or mental well being is threatened; provided the claimant in each of these situations has informed the employer but obtained no relief."

Friday, December 2, 2011

This is the case cited by the ALJ in its decision. The case is from 1952:

"NEW YORK STATE DEPARTMENT OF LABORUNEMPLOYMENT INSURANCE DIVISIONADJUDICATION SERVICES OFFICE

October 2, 1952INTERPRETATION SERVICE – BENEFIT CLAIMSVOLUNTARY LEAVING OF EMPLOYMENTGrievances and AnnoyancesReferee’s Case Number 51-325-52R

VOLUNTARY LEAVING OF EMPLOYMENT – CONSTANT NAGGING AND CRITICISMConstant nagging by his supervisor, as distinguished from legitimate criticism, may constitute good cause for an employee’s voluntary leaving of employment.

Referee’s Findings of Fact: A hearing was had at which claimant and representatives of the employer and the Industrial Commissioner appeared. Testimony was taken. Claimant, a porter, filed a claim effective April 28, 1952. By initial determination effective the same date, he was disqualified for 42 days for voluntary leaving of employment without good cause. Claimant was employed at a club operated by a fraternal organization from August 7, 1951 to April 25, 1952, at 90 cents per hour, as a porter. He voluntarily left his employment on the latter date because the building superintendent was constantly criticizing his work and used vile and obscene language in addressing him. He indicated that he was unable to perform the work to the satisfaction of the superintendent who constantly nagged him regarding his work. The employer notified the insurance office that claimant had quit: "Work not satisfactory and we are just as pleased that he did quit of his own accord."

Referee’s Opinion and Decision: It is clear that the superintendent was dissatisfied with claimant’s services and, apparently, was desirous of terminating his services. Claimant quit his job because he felt that he could no longer endure the criticism and nagging of the superintendent. In Consiglio v. Administrator, Unemployment Compensation Act, 137 Conn. 693, 696 (Conn. Sup. Ct., VL-500.752-7, BSSUI.) The Court in part said:

"Is an employee justified in quitting his job because of nagging? That, it seems, would depend upon the extent and nature of the nagging. Goldberg testified, ‘I just couldn’t stand it anymore. I was afraid I was going to get very sick and I just couldn’t stand it.’ It is found by the Commissioner that ‘For a period of four or five months prior to February 20, 1951, the senior partner was finding fault with the claimant’s work but the claimant knew that most of the fault finding was meaningless.’ This latter statement is based, apparently, on what the son testified. Nagging may be meaningless to the fellow doing it but not necessarily to the fellow on the receiving end. It is evident that Goldberg was much concerned about the constant fault finding for the last four or five months of his employment. Did he act as a reasonable person would have acted in the light of all the circumstances in quitting his job?

"There is a difference between legitimate criticism and nagging. Criticism may be justified; it can finally, if kept up long enough, degenerate into a constant nagging. There is a limit to what a man is obliged to take in order to hold his job. It is evident that there was nagging. The claim is that he was supposed to take it, everybody did; that it was meaningless. We must use common sense in deciding this matter of extent to which the employees must take it. He can be flighty or he can be patient till finally the situation becomes unbearable. No employee should have to take constant nagging. In this case it was clearly not a quick temper or impulsive decision which made the employee quit. No sensible man is giving up a $135 a week job merely because he is sore or angry. An employer can be so mean as to drive an employee off the job. The claim that you are supposed to take it is not a sufficient answer."

The same reasoning applies in this case and I conclude that claimant was justified in voluntarily leaving his employment. The initial determination is overruled. (August 8, 1952)"

Thursday, December 1, 2011

It is interesting as to the different theories that upheld the claimant's eligibility for benefits. Recall that in my application to reopen the default, my position was as follows:

"It appears that the Claimant did not quit but was terminated due to inadequate performance as the result of inability, viz., after several verbal warnings, she was instructed to sign a letter that if she did not make quota that week, it will result in termination. She did not make her sales quota that week. Even assuming all of the allegations of the employer: a worker who voluntarily leaves his or her employment in the face of disciplinary charges may qualify for benefits if his or her actions did not constitute misconduct (See Matter of Riley, __ AD3d __ [Decided May 22,2008], Matter of Straw, 32 AD3d 1098, Matter of Jiminez, 20 AD3d 843) and if an employer offers a choice of dates for terminating the employment: a claimant does not become subject to a disqualification for voluntary leaving by a selection of the earlier of two dates since exercising such option does not make the separation voluntary. (A.B. 141,874; A-750-1687; similarly, App. Div., Matter or Ziembiec, 62 A.D. 2d 1105)"

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Jon Michael Probstein, Esq.

About Me

Since 1977, my practice consisted of representing and assisting people and businesses in all matters, including public and private corporations, on both a civil and criminal level. My services have included public offerings, proxy fights, securities regulation, all phases of civil and criminal litigation, family law, estate law, guardianships, negotiation and drafting of a wide variety of agreements and transactions, in addition to general advice with regard to the customs and practices within various industries. I was also a Guest Commentator on COURT TV and an arbitrator. I am admitted to practice in New York and the federal courts, Southern and Eastern District, as well as the Second Circuit Court of Appeals. Currently, I am special counsel to law firms in Los Angeles and New York, as well as operating my own office in Nassau County. I regularly perform pro bono work for the Volunteer Lawyers Project, Nassau/Suffolk Law Services, Inc. and the NYS Unemployment Insurance Appeals Board and I am a member of the LAP Committee of the Nassau County Bar Association. I also have a blog that discusses common legal problems which you can visit at http://jmpattorney.blogspot.com/